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Courtroom SuperFunTime

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Or “How to enjoy American Jurisprudence”

In late July of 2010, a conservation officer is roused from bed by a call from county dispatch. There’s a report from someone on a local lake that there is a boat being driven around by a loud group of intoxicated individuals. It’s sometime after midnight. It’s a short drive to the location. Our officer is off to the scene.

So begins the story of the criminal trial case I was given as my first taste of jury duty.

I was lucky, I had recently been laid-off from my job when I got my notice. Jury duty in our county lasts three months, jurors are picked at random to serve on-call for that period. As soon as my service period started, I was summoned for a trial. I showed up at the courthouse, one of about forty people. They showed us a “propaganda video” (those are the exact words of one of the bailiffs) that I didn’t pay much attention to.

Then there was waiting.

After fifteen minutes or so of social awkwardness (forty strangers in a small room with no reading material), we were brought into the courtroom to begin Voir Dire. First, of the forty or so jurors, half of us were selected for Voir Dire. I was first. My name was mispronounced, which always irks me. I said something, someone told me to tell it louder, so I did. And yet, the next time I was addressed, they still got it wrong. (To the credit of both the prosecuting and defense attorneys, they did hear me and did not mispronounce my name. Voir Dire is, in a lot of ways, a humiliating process. So the little things, like having your name pronounced correctly, adds a lot dignity.)

What was interesting about this Voir Dire is that the defendant is actually present for the process. Didn’t expect that. Many of the questions during the selection process were related to boating, particularly guiding a boat into a lift. But not mine. I knew one of the officers on the witness list. The defense attorney grilled me about this, whether I could be objective when 1) I knew the officer and 2) I knew several other people who are, or trained to be, or were currently training to be, peace officers (including serving as Best Man in a wedding of a man who trained to be a conservation officer and was POST certified in the state).

The prosecuting attorney asked about my hobbies. I read a lot, I write a lot. He then asked about whether I had been published. And yes, I’ve been published a lot over the last ten years on a variety of topics. I even mentioned the novel, which is ironically a crime thriller. (I don’t like mentioning the novel, as it’s not published yet, and it’s my first one, so it’s not like I can give someone a copy of a previous book to prove I actually wrote a book and I’m not just blowing smoke.) This line of questioning made me something of a minor celebrity among the jurors. Not what I wanted.

Regardless, I 100% expected to be dismissed. I have a lot of education, an interest in crime (I was even asked about my TV habits) and I knew one of the witnesses for the State. An easy ten bucks for two hours or so of waiting.

Imagine my surprise when my name wasn’t called and the judge announced the thirteen of us still sitting were jurors for a criminal case. After some more waiting, the prosecution and defense delivered their opening statements and we rejoin the story as our conservation officer arrives at the lake in question.

On the state highway next to the lake, our officer stops and observes a boat (the only boat on the lake) through binoculars. The boat was coming in towards shore. It had improper lighting for night boating. It was heading for a small lot with a “lit up” trailer. The officer did not observe any erratic maneuvers.

He puts the binoculars down and approaches the lot.

And here is “the moment.”

The entire crux of the state’s case takes place at this instant.

As the officer is walking down to the dock he turns on his flashlight. At no point previous to this did the officer see the occupants of the boat. As the light hits the scene, he sees a pontoon boat, three people are forward, one aft. The boat is “one-quarter to one-third” the way into the lift.

The gentleman at the back of the boat, his back away from the officer, is the defendant. He is kneeling over the motor. The motor is a tiller motor, connected to the boat’s steering column, but it still has a handle on it with a throttle.

According to the law, if your are operating a boat or in a position to operate a boat being propelled by mechanical means, your are responsible for the boat. Our officer identifies himself, separates the defendant from everyone else, administers a field sobriety test (which the defendant promptly fails), and makes an arrest. At the jail, just before 2am, the defendant blows a .21 blood alcohol content.

He is booked on two intoxication charges, two charges related to the boat (improper lighting, not enough life vests) and lying to a police officer (the defendant gave a last name that was not his legal one). Pretty serious trouble for an hour-long joyride in a pontoon boat.

The trial circled around this testimony from the conservation officer. The prosecution called other witnesses, the man who conducted the breath test at the jail and a deputy who arrived on the scene later. Neither were really important. The defense called upon two of the people on the boat, both of whom claimed the defendant was not driving the boat. Their testimony contradicted and was not credible.

The prosecutor was nearly perfect in presenting his case, the defense was not so perfect. However, the defense was able to point out several areas of doubt. The officer did not see the defendant at the steering column nor with his hands on the motor. The motor itself needed to have the fuel pump/line disconnected in order to stop the motor (photos of the boat showed the fuel line had been disconnected, right where the defendant was seen at “the moment”).

We went to deliberation just before lunch. (This is on day two of the trial.)

I had my doubts. I did not know if they were reasonable. I didn’t want to convict someone for disconnecting the fuel line on an improvised rig (very improvised rig, this boat looked like it had been stolen from a junkyard). I felt the defense had a reasonable explanation for why the defendant was at the back of the boat while everyone else was forward. The boat was being put in a lift, and that was an important circumstance.

A second piece of evidence the prosecution provided that I haven’t talked about was a tape recording done by the conservation officer. The tape recording was just about impossible to hear, but you could make out the officer asking “was [he] driving?” then an inaudible feminine response, then the officer saying “yes, she said yes.”

I discarded the tape evidence because I know the brain panics in these situations. The girl (the same one the defense called to the stand) was in her swimsuit, had just been confronted by a police officer, admitted she had been drinking a little, and was probably frightened. It was one in the morning and she was in her early twenties. I also felt the question the officer asked was leading.

In these situations, people often will give the authority figure the answer they think the authority figure wants to hear. True number: 25% of death row DNA exonerations (people wrongly convicted of a capital crime) had confessed to the murders they weren’t guilty of committing. These little police-civilian interactions aren’t a good foundation for truth. Thing was, I doubted if any of the other jurors knew the complex social dynamics likely going on that night.

The two pieces of evidence that the state provided, the defendants proximity to the motor during the docking operation and the tape, were not enough for me.

Going into deliberations, I decided that I would allow everyone else to give their views before presenting my case. If it was 11-1, and I was the one, I decided I would present my doubts to the rest of the jurors. Be clear, understated, and then let them decide if my doubts were reasonable or not.

I needed to be careful. I have a lot of education, and I’ve spent many years of my life learning to speak well. I didn’t want to play academic, show I was smarter than the lawyers, and convince people to ignore their common sense. I did not want a “12 Angry Men” moment. I also have a libertarian political philosophy. Unless someone does harm to someone else or their property in the course of their affairs, their affairs are no concern of the state. That’s my view, with very few exceptions. But I couldn’t let my philosophy interfere with our task, so I had to be aware of it, and hope I could consciously overcome my live-and-let-live attitude.

The deliberation room was very small. The entire court building was under construction. The water faucet didn’t work. It would not be a pleasant place to spend a lot of time.

My doubts about the state’s case were well placed, if the other jurors sentiments are to be trusted. As soon as we started people were anxious to express the problems with the state’s case. One juror, a wiry middle-aged roofer, was adamant from the beginning–It would be impossible for someone that drunk (nearly three times the legal limit) to navigate a boat into a rusty lift at night with almost no lighting.

From there on out it was a race between the jurors to voice their objections and doubts in the case. None of the jurors had any inclination to convict the defendant based upon the tape. After an hour or so of discussion, there were two holdouts. The jury foreman, a non-practicing lawyer, and another gentleman whom I had not talked to at all to this point, were still on the fence.

I was sitting next to the foreman, so we started reading through the documents relating to the law that we were all given as we went to deliberations. It explained the process and the law. The foreman was going to convict based on the “or in a position to” clause of the statute. But, there was another clause we had previously overlooked.

The boat needed to be under power. If it wasn’t being propelled by mechanical means, it was not a crime, under the statute. The prosecuting attorney even brought up the issue, and in his closing statement tried to make the case that momentum from a motor that had been running was the same as being propelled by mechanical means; if the engine caused the motion, that was good enough, according to him.

While the engine was running at “the moment,” it was probably not pushing the boat anymore (as the boat was not propelled through the lift) So, does momentum count? The wiry roofer said no. The boat was being manipulated more by those in front of the boat who were guiding the boat into the lift then it was by any Newtonian remnant of the engine. Even if we weren’t sure, did the state prove the motor was propelling the boat in such as way as to meet the requirements of the statute?

I don’t know if the foreman was convinced by this specifically, but soon after he had switched sides.

One juror left. He asked us if we really believed the defendant was innocent.

Most of us believed the defendant had done something wrong that night. From the circumstances alone, there was a 25% chance he did drive the boat. Over the course of an hour on the lake, he likely was operating the boat or in a position to operate the boat to some point that night.

But we were there to verify the facts. Did the state provide the facts necessary to convict the defendant beyond a reasonable doubt?

I said I needed something more. One or two more pieces of solid evidence. Something more than a single inaudible response to a leading question on a not-too-clear tape. Something more than mere proximity to a motor as the boat was being docked. That cinched it.

The jury was decided. Not Guilty on four counts, Guilty on one count of lying to a police officer.

Just as we were getting set to leave, the bailiffs brought us lunch. So we got stuck spending an extra hour in deliberations.

As the verdict was read, the prosecutor was sullen. He had been perfect, and still lost. I know the feeling and it sucks.

The defendant, to his credit, reacted to nothing. He was stone-faced throughout the trial.

(A quick aside here. If you’re ever a defendant in a criminal trial, shave off any evil-Spock facial hair you might have. Just a suggestion.)

We were done just after noon. The whole trial took about seven hours, which is two days worth of work for the judicial system.

*      *      *

Going into this, I was skeptical of juries. The process is open to emotional manipulation by unscrupulous lawyers (redundant?) out to make a buck or a name for themselves. Leaving the process, I’m far more confidant in the jury system. It’s not perfect, but everyone tries their best.

More importantly, a jury is a check on state power. Without a jury, this trial would have been an employee of the state interviewing an employee of the state in order to convince an employee of the state. The jury system forces more conflict, and conflict is a good thing. Conflict clarifies facts.

In deliberations I found many of the jurors had bad experiences with police officers. But we were also worried about drunk drivers killing people. We found a balance. Despite the previous negative experiences with police officers, we based our decision almost entirely on the officer’s testimony (which we took wholesale as truth). In the end, we all agreed he jumped prematurely to a conclusion without the support of enough facts to convict. That’s that.

Before we leave this, I wanted to point out that the best coffee I’ve ever had is served in the Douglas County courthouse. I don’t know what their secret is, but the bailiff didn’t reveal a thing to me about it.

(I’ve done my best to leave out any details that could identify who is who among any of the players in this story. I’m not writing this to discredit or promote anyone. I’m writing about this to remove some of the mystery and endorse the jury process to those who are skeptical. Everything I’ve written is what I remember, but memories fail and I might have gotten some of the details wrong; we were not allowed to keep our notes. If there’s an issue with something I wrote, please contact me through the website and I will change whatever needs to be changed.)

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